30 October, 2014
DJ Jackson - 8th October 2014
Wigan County Court
Forbes successfully defended this matter at trial on behalf of Wigan Council. The Claimant sought damages for personal injury and loss arising out of an accident alleged to have taken place at 6.30am on 10 April 2013. The Claimant alleged that he was cycling down a road when his front wheel went into a depression, which caused him to be thrown over his handlebars.
The Judge accepted that the Claimant fell as a result of the wheel of his bike going into the pothole at the location as he alleged and he also found that the highway was in a dangerous condition. There had been two inspections by the Defendant in the month before the accident; on 06/03/13 the Defendant had carried out a walked inspection and on 27/03/13 the Defendant had carried out a driven inspection. The Judge commented that this was an unusual case and in the 15 years he had sat at Wigan County Court, he did not recall ever coming across inspections that had taken place in such close proximity to the time of the accident.
The Claimant provided a Google image from October 2012. The image showed a darkened area under an "X". However, the Judge stated that it was impossible for him to find this was the beginning of an actionable defect that resulted in the Claimant's accident and that it should have been picked up for repair. The inspectors have a duty to pick up defects that are considered dangerous. The Claimant's Counsel argued that this defect must have been obvious as a defect and as being actionable. The Defendant maintained that defects could remain in the same non actionable condition for years or could deteriorate significantly within hours.
Furthermore, it was argued that the defect was located on a busy road into Wigan. It was winter not long before the accident and the accident happened before the risk of frost had passed. The Judge found that the inspectors had not missed the defect. He accepted that all people make mistakes, but there is evidence to suggest that the inspectors are diligent and pick up faults. There were two inspections in very close proximity to the accident and this reduces the chance that the defect was missed.
The Judge therefore found that the Defendant had proved the s.58 defence. There was a reasonable system of inspection in place. For that reason the claim must fail. The Judge concluded "The Law does not require roads to be perfect all the time and this would have a detrimental effect on the public purse. The Council must do only what is reasonable."
In this case, the Claimant attempted to use Google Street View images to support their case that the defect had been longstanding. Such images are increasingly being used by Claimants, especially now there is a feature which allows you to look at images taken in previous years. Street View is a useful tool when dealing with highway cases and the images produced can sometimes be of assistance. We recommend that Street View is now checked in all highway cases.
For more information please contact Elizabeth Bower by email or on 01254 222411